Stacey v Secretary, Department of Education

DETERMINATION OF APPEAL PANEL
CITATION:	Stacey v Secretary, Department of Education [2024] NSWPICMP 198
APPELLANT:	Scott Hamilton Stacey
RESPONDENT:	Secretary, Department of Education
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Richard Haber
DATE OF DECISION:	4 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from nil finding for cardiovascular impairment; appellant suffered complications from knee surgery which resulted in DVT and other complications, including more knee surgery: whether referral terms appropriate; whether adequate reasons given; whether correct criteria applied; Held – the referral terms were those pleaded in the ARD; usual practice of referrals by Commission noted; Medical Assessor (MA) stated ‘not applicable’ in answer to templated invitation to comment on other material; MA referred to inappropriate chapter of the Guides in his Table 2 Certificate; examination findings queried; error established, El Masri v Woolworths Ltd considered and applied; appellant re-examined; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 June 2023 Scott Hamilton Stacey, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Christopher Grainge, general physician, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 May 2023. On the same day Medical Assessor Robert Kuru, orthopaedic surgeon, who was appointed Lead Assessor, also issued a MAC in relation to the same referral. Medical Assessor Kuru in fact was asked to reconsider his MAC and he issued an Amended MAC on 18 October 2023, which incorporated the assessment of Medical Assessor Grainge.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        the assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 14 February 2023 this matter was referred to the two Medical Assessors as indicated above. The WPI assessment was sought in relation to injury to the cardiovascular system and injury to the right lower extremity (knee) and scarring/TEMSKI that occurred on
19 September 2018. Medical Assessor Kuru was asked to assess the claim regarding the right lower extremity (knee) and TEMSKI (scarring) and Medical Assessor Grainge the claim for the cardiovascular system. Medical Assessor Kuru assessed 28% WPI.
As indicated, the appeal is made against the MAC of Medical Assessor Grainge.
Medical Assessor Grainge took a history that on 19 September 2018 Mr Stacey twisted his right knee and after some unsuccessful treatment including two bouts of surgery, one on
13 February 2019 the other in August 2019, he came to a total knee replacement on
1 March 2021. This procedure was complicated by infection which resulted in the prothesis being removed on 3 June 2021 and further surgery for a spacer to be fitted on 29 June 2021.
About 10 days after the surgery on 1 March 2021 Mr Stacey developed right sided deep vein thrombosis secondary to pain and swelling in the right calf and an ultrasound demonstrated two short areas of occluded veinous structure.
Further treatment fully resolved the veinous clots after about six months.
In late March 2021 whilst at home Mr Stacey experienced pain in his chest and was taken to Coffs Hospital where no pulmonary embolus was found.
Additionally, he acquired a hospital related pneumonia around 23 June 2021 which resulted in him going from Baringa Hospital to Coffs Harbour Public Hospital and, after tests were run, back to Baringa hospital. Mr Stacey recovered fully from this episode as well.
The Medical Assessor certified there was no WPI caused by the injury to the cardiovascular system.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7. As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination, for the reasons given below.

FRESH EVIDENCE

The appellant seeks to admit the following evidence:
(a) report of Dr Eileen Morrisroe, consultant vascular surgeon dated 21 June 2023, and
(b) Venous duplex scans dated 16 June 2023.
Dr Morrisroe assessed Mr Stacey on referral from his general practitioner (GP) 8 June 2023. The reason for the referral was that Mr Stacey had become concerned about his right leg, which had become swollen and painful. Dr Morrisroe organised duplex imaging on
16 June 2023 which found some compressible popliteal vein chronic thrombus. Dr Morrisroe took a consistent history of Mr Stacey’s knee replacement in 2021 and subsequent complication of deep vein thrombosis and infection which required multiple surgical re-interventions on the right lower limb.
Examination revealed right lower limb pitting oedema. Dr Morrisroe was unable to say,
Mr Stacey being a new patient, how much the oedema was related to changes following the deep vein thrombosis and how much it was due to lymphatic disruption from the multiple surgeries. The deep vein thrombosis having been provoked and not spontaneous, no congoing anticoagulation was required. Dr Morrisroe prescribed long term grade 2 compression stockings and would await progress to get a better idea of his prognosis.
The venous duplex scans were those relied on by Dr Morrisroe.

Submissions as to fresh evidence

Mr Stacey submitted that this evidence was significant, as it explained the cause of his ongoing swelling and restriction in his right leg. It was not available prior to the assessment with the Medical Assessor, and Mr Stacey submitted that it was reasonable that he did not obtain the referral prior to the assessment, as he was dependant on his medical advice, and was totally reliant on his GP as to treatment.
The respondent objected to the admission of this fresh evidence, submitting that it did not comply with s 328(3) as it could reasonably have been obtained prior to the assessment with the Medical Assessor. The Medical Assessor had noted that there were no tests done since 2021, and the respondent submitted that if such tests had been required, the Medical Assessor was able to arrange them pursuant to s 324 of the 1998 Act.
The respondent submitted that as the referral was in respect of the cardiovascular system, the evidence was not relevant, as it was not “additional relevant information”.
Further, the respondent argued that the evidence contravened the provisions of Rule 67 of the Personal Injury Commission Rules 2021, which prevents a party from introducing evidence that had not been lodged and served with the application, relevantly.

DISCUSSION AS TO FRESH EVIDENCE

Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The first question is whether the fresh evidence could reasonably have been obtained prior to the Medical Assessment on 12 May 2023. The answer is contained in the history of this injury as given in Mr Stacey’s statement of 15 December 2022.[1]
[1] Appeal papers from page 53.
The injury to the right knee on 19 September 2018 seemed innocuous, as it occurred when Mr Stacey and a student were carrying a volleyball pole to assemble a volleyball net. The student made a comment and when Mr Stacey turned to his right to reply, he felt a “very severe pain in the inner side of my right knee”.
The history of the treatment to that injury, however, is another matter. Mr Stacey consulted his GP, Dr McAfee, who initially referred Mr Stacey for physiotherapy. However, following investigations, Mr Stacey was referred to Dr Chan, orthopaedic surgeon, who recommended surgery.
On 13 February 2019 Dr Chan performed an arthroscopy. On 11 March 2019 Mr Stacey underwent a corticosteroid injection which afforded only some short-term relief. Mr Stacey underwent further physiotherapy from May 2019 to about January 2021.
This treatment did not improve the condition of Mr Stacey’s right knee and on
20 August 2019 Dr McAfee referred him for a second opinion to a specialist knee orthopaedic surgeon, Dr Collins.
There were follow-up consultations with Dr Collins on:
·        17 September 2019;
·        26 November 2019;
·        4 February 2020;
·        4 August 2020, and
·        17 November 2020.
Mr Stacey underwent three corticosteroid injections over about six months and again they afforded only short-term relief. For about 12 months during this time Mr Stacey wore a knee brace. The lack of improvement, notwithstanding this treatment, resulted in recommendation by Dr Collins that there be a right knee replacement.
This took place on 1 March 2021 but was followed by complications. Mr Stacey said from paragraph [37]:
“37. I had severe complications following my surgery involving what was diagnosed as blood clots and deep vein thrombosis in my right leg, serious life threatening infections, pneumonia and a collapsed lung.
38 . I had extensive periods of further admission both at Baringa Hospital and Coffs Harbour Base Hospital due to these complications. I experienced extreme pain during this period.
…
40. My right total knee replacement had to be removed which was undertaken on 3 June 2021 with Dr Jovanovic and a second prosthesis was fitted in further surgery by Dr Jovanovic on 29 June 2021.
…
43 . I had further surgery to manipulate my right knee with Dr Jovanovic at Coffs Harbour Hospital in August 2021 .
44. There were significant delays by both Baringa Hospital and Coffs Harbour Hospital staff in diagnosing these problems and my right knee is much worse as a result.
45 . I have been advised by Dr Alan Hopcroft that I am at risk of losing my right leg if the infection I sustained re-emerges. I cannot have any further knee replacements.
….
52. Having been made aware of the seriousness of my medical circumstances, I became severely depressed with the resulting changes in my life and the pain that I experience every day. It was confronting to hear from Dr Jovanovic, that first he had saved my life, and being successful in that, to then save my leg…
…
54. I have had a very poor result from my right knee replacement. I am very worried about the future of my right leg and that if the infections return, I could lose my right leg entirely.”
Mr Stacey’s history was supported by extensive medical evidence as set out in the index to the ARD.[2] Dr A G Hopcroft, general surgeon (orthopaedics), summed up Mr Stacey’s situation in his report of 18 August 2022:[3]
“This patient's post-operative complications are well known throughout the Orthopaedic Association of Australia with deep venous thrombosis triggering major secondary sepsis, a well-known complication of right knee arthroplasty …..
This patient was placed at a risk which became reality when he was sent home with major swelling of his right leg, major pain in his calf, and all the features of deep venous thrombosis which, failing to be treated adequately by hospital admission, high elevation, anticoagulation and prophylactic antibiotic cover, he was sent home and all those complications came into existence.”
[2] Appeal papers page 51.
[3] Appeal papers page 91.
It can be seen that the injury suffered by Mr Stacey has been complicated as a result of his complex surgical treatment. From what appeared to be an innocuous genesis, a protracted and unfortunate history has resulted. There is accordingly some force in the submission of the appellant that Mr Stacey felt himself in the hands of the medical practitioners treating him in the circumstances, and thus could not have reasonably anticipated that the investigations carried out at Dr Morrisroe’s behest should have been carried out at an earlier time.
Moreover, Mr Stacey’s symptoms recurred after the consultation with the Medical Assessor on 5 May 2023, but at a time prior to the publication of the MAC, which as we have noted, was delayed until 18 October 2023. The first attendance by Mr Stacey on Dr Morrisroe was
8 June 2023, we assume that he attended his GP a short time before. There is accordingly no suggestion that Mr Stacey sought further medical treatment because he was unhappy with the MAC. Dr Morrisroe noted Mr Stacey’s presentation with a swollen right leg which on examination showed pitting oedema.
In contrast, the Medical Assessor in his examination on 5 May 2023 noted:[4]
“On the right leg… [t]here was increased calf muscular tone and fullness compared to the left leg. There was superficial venous congestion in both legs below the knee with no increase on the right side and there was normal capillary refill on both sides.”
[4] Appeal papers page 36.
Thus, at a prima facie level, there had been a recurrence of the symptoms about which he complained to the Medical Assessor, namely “calf swelling which takes several hours to reduce”.
In the context of this history the fresh evidence is admissible in addition to the evidence received by the Medical Assessor, as it could not reasonably have been obtained by
Mr Stacey before the medical assessment of 5 May 2023, which preceded the recurrence of his symptoms.
We note the respondent’s submission that the fresh evidence was not “additional relevant information”, but would observe that there is no such requirement in s 328(3). “Additional relevant information” is concerned with the role of the gatekeeper pursuant to s 327(4) of the 1998 Act, and is a specific requirement of s 327(3)(b). The point raised, however, also included a reference to the terms of the referral, which was in relation to the “cardiovascular system”. We are satisfied that the referral included the lower extremity by virtue of Table 4.5 of AMA5, which we shall expand upon in our substantive reasons below.
The respondent also objected to this evidence on the basis that it infringed the terms of Rule 67 of the Personal Injury Commission Rules 2021. Whilst it is a requirement of the Commission’s Procedure that all the evidence be lodged and served with the respective originating pleadings, the legislature recognised that there would be situations where this procedure could not be complied with. Accordingly provision was made for the admission of further evidence in terms of s 327(3)(b) and s 328(3) of the 1998 Act. Accordingly this ground is rejected.
For these reasons, the fresh evidence is admitted.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Further medical examination

Dr Mark Burns of the Appeal Panel conducted an examination of the worker on
13 December 2023 and reported to the Appeal Panel.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions which have been considered by the Appeal Panel.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

The MAC

The Medical Assessor accurately described the terms of the referral, stating that he was to assess the “Cardiovascular system”. We have under “relevant factual background” related the history taken by the Medical Assessor.
The Medical Assessor described Mr Stacey’s symptoms on presentation. These included complaints of “calf swelling which takes several hours to reduce” on walking, as also noted above.
As further noted above, on examination the Medical Assessor found “superficial venous congestion in both legs below the knee with no increase on the right side and there was normal capillary refill on both sides”. The Medical Assessor also said “there was no peripheral oedema including in the right leg”.[5]
[5] Appeal papers page 36.
The Medical Assessor had access to an ultrasound of the right lower limb dated
21 May 2021. He noted that a further ultrasound was performed on 13 August 2021, “but the results of that are not available in the documentation packet. The report though from
[6] Ibid.
Mr Stacey suggested that that was reported as normal”.[6]
The summary of injuries and diagnoses the Medical Assessor described as follows:
“1. Right leg DVT following right knee replacement surgery with 6 months treatment of Apixaban.
2. Hospital-acquired pneumonia in late June 2021 requiring intravenous antibiotic therapy.”
The explanation for the assessment made by the Medical Assessor was given at [10a] of the MAC:
“The history and examination I made of Mr Stacey today in conjunction with the medical record supplied. Mr Stacey has significant impairment from his infected right total knee replacement but in terms of cardiovascular system, there is resolution of his deep vein thrombosis and of his hospital-acquired pneumonia with no impairment directly resulting from either of those.”
At [10c] of the MAC a templated question asks the Medical Assessor for “my brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs”. The Medical Assessor stated:
“Not applicable.”

Appellant’s submissions

Mr Stacey submitted that the Medical Assessor had fallen into error in the following respects:
(a)   he assessed the wrong injury, namely the respiratory and cardiovascular system when the ARD did not allege such a dispute;
(b)   in applying Chapter 4 of AMA5 he had applied incorrect criteria;
(c)   he failed to apply the correct criteria at Chapter 3.36 of the Guides and Table 17 – 38 of AMA5;
(d)   he failed to provide reasons as to his assessment;
(e)   he failed to “properly consider” the medical evidence or provide reasons as to why he disagreed with Dr Hopcroft’s assessment, and
(f)    he failed to consider the evidence contained in the appellant’s statement.

We were referred, relevantly, to the uncontroversial decisions regarding the definition of a demonstrable error[7] and the need to give adequate reasons.[8]
[7] Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88; Vegan.
[8] Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43.
Mr Stacey then expanded on the first two grounds of his appeal. He referred to the manner in which the injury had been pleaded in the ARD. This was supported by the reports of
Dr Hopcroft who assessed 20% WPI in respect of deep vein thrombosis and pulmonary embolization. It was, the appellant submitted, “pellucidly clear” that there was no claim made for any respiratory or cardiovascular impairment.
It was alleged that the Medical Assessor had accordingly erroneously assessed Mr Stacey for a “respiratory and cardiovascular (heart)” condition. This, it was argued, was because the Medical Assessor “misconstrued” the consequential condition he was required to assess. This was an “erroneous focus” on matters that were not before him, it was submitted. There was only one reference to the Guides (Chapter 12) and to AMA5 (Chapter 4), which were contained in the Table 2 assessment. Neither Chapter, it was submitted, was concerned with the medical dispute before the Medical Assessor. He had accordingly applied incorrect criteria and made a demonstrable error.
The correct criteria it was submitted was that contained in Chapter 3 of the Guides, which was stated to take precedence over AMA 5. The appellant kindly reproduced the relevant section of the chapter.
Mr Stacey criticised the “limited findings” on examination by the Medical Assessor, in which he failed to conduct any assessment of pain and swelling whilst walking which, it was said, would have been “highly relevant” to his assessment under Table 17-38 of AMA 5.
Mr Stacey also criticised as being “manifestly inadequate” the reasons given by the Medical Assessor at [10] of the MAC.
We were then referred to the evidence contained in Mr Stacey’s statement and the reports of Dr Hopcroft. In particular, it was submitted that the failure by the Medical Assessor to make any comment at [10c] other than “not applicable” constituted appellable error.

Respondent’s submissions

The respondent noted that, contrary to his submission, Mr Stacey had expressly pleaded the cardiovascular system as being one of the injuries that he sought to have assessed, as was set out in the ARD form. The cardiovascular system had been clearly stated in the referral, and no objection had been raised by Mr Stacey.
We were referred to a number of cases of some vintage as to the effect of the referral in medical appeals.
The respondent further noted that Dr Hopcroft did not have the relevant qualifications to advise on vascular conditions as he was only qualified as an orthopaedic surgeon. “In the circumstances, and having regard to the way the ARD was pleaded”, the respondent argued, the referral was appropriate and it was based on the pleaded injuries. Accordingly, the Medical Assessor had not erred in the manner in which he assessed impairment caused by any cardiovascular condition. It was submitted that although Mr Stacey alleged that the intention was for an assessment of the vascular system in the right leg, the Medical Assessor had not been asked to do so, but rather assess the cardiovascular system.
In any event, the respondent submitted, the Medical Assessor was aware of the true issues in the case as he addressed both the deep vein thrombosis and indeed the hospital – acquired pneumonia at [10a] of the MAC.
The respondent then submitted that it would be “foul” to submit that Mr Stacey should be assessed under criteria that did not form the basis for the opinion by his expert Dr Hopcroft. Although Mr Stacey maintained that the Medical Assessor should have utilised the criteria in Chapter 3.36 of the Guides, he in fact relied on an assessment pursuant to Chapter 4 of AMA 5, as advised by Dr Hopcroft.
The respondent submitted that adequate reasons had been given, and in fact that the Medical Assessor had provided “sound reasons” for his opinion. We were again referred to his comments at [10a] of the MAC.
As to the alleged failure to consider relevant evidence advanced by Mr Stacey, the respondent submitted there was no obligation on a Medical Assessor to comment on all the evidence before him, particularly in this case as Dr Hopcroft did not possess the qualifications to make such an assessment.

DISCUSSION

The appellant faces some difficulty in supporting his submission that it was “pellucidly clear” that there was no claim for cardiovascular injury. There was, and the appellant himself made it in the Permanent Impairment/Pain and Suffering claim in his ARD.[9] This injury description is utilised whenever the Workers Compensation Disputes Directorate refers a dispute to a Medical Assessor, unless of course it is subsequently amended by agreement or by the Commission.
[9] Appeal papers page 49.
The Panel however determined that there were other issues raised by Mr Stacey that were of more significance. We have above referred to Vegan and the need for a Medical Assessor to give adequate reasons. The respondent referred to the reasons given at [10a] wherein the Medical Assessor noted there was resolution of the deep vein thrombosis and the hospital-acquired pneumonia and there was therefore no impairment assessed.
This finding appeared to be based on the examination carried out by the Medical Assessor, who noted there was no peripheral oedema “including in the right leg”. It does not appear that the Medical Assessor tested for pitting oedema which was found within some weeks by Dr Morrisroe. Certainly, if the Medical Assessor tested for pitting oedema, he did not say so.
We note the Medical Assessor’s reference to a bout of hospital acquired pneumonia around June 2021, the relevance of which we had some difficulty seeing in the light of the referral.
In any event the Medical Assessor did not explain the basis on which he found there to be a nil impairment. The reference in his Table 2 Certificate to Chapter 12 of the Guides is hard to follow, as Chapter 12 is concerned with the haematopoietic system, which consists of organs and tissues, primarily the bone marrow, spleen, tonsils, and lymph nodes involved in the production of blood. The Medical Assessor did not explain why he used this Chapter when assessing the cardiovascular system, which is the subject of Chapter 15 in the Guides, and which, by the introduction thereto, provides that Chapter 4 (relevantly) of AMA5 is to apply.[10]
[10] Guides page 77.
There was also some substance to Mr Stacey’s submission that the failure to engage with the extensive medical evidence lodged by the appellant, already referred to above when discussing the fresh evidence, constituted an appellable error. The respondent criticised the expertise by Dr Hopcroft, but the Medical Assessor simply made no comment at all. The Medical Assessor’s refusal to comment on the other material before him at [10c] of the MAC, left us in something of a quandary. The Medical Assessor was certainly incorrect to describe it as “not applicable,” and we were unable to follow his reasoning in that regard either.
In El Masri v Woolworths Ltd[11] Campbell J said:
“…Although … Wingfoot[12] does not necessarily apply to this case because it was a case where there was a statutory obligation to give reasons, and in this case the obligation to give reasons is implied by the general law as explained in Campbelltown City Council v Vegan[13]what their Honours said at [55] of Wingfoot must be applicable. Basically, the statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.”
[11] [2014] NSWSC 1344.
[12] [2013] HCA 43.
[13] [2006] NSWCA 284.
We were, in the final analysis, left in some doubt as to the reasoning by the Medical Assessor had accordingly satisfied that a demonstrable error had been shown.
Accordingly, Mr Stacey was re-examined by Medical Assessor Burns on 18 December 2023. Medical Assessor Burns’ report follows:

“Examination Conducted By:

Dr Mark Burns

Date of Examination:

Attendance:

___________________

13 December 2023

Scott Stacey and Leanne Stacey, his wife.

______________________________________

1.    The workers medical history, where it differs from previous records.
Mr Stacey confirmed the history obtained by Assessor Grange but added some further information, which had not been obtained by the Assessor.
He stated also that the procedure that was carried out in August 2021 was a manipulation under anaesthetic of his right knee. Following this operation, he continued to have pain and discomfort in the knee and calf muscle region.
Mr Stacey reported that he had not been seen by a Vascular Specialist after his initial development of deep vein thrombosis and pulmonary embolus.
In 2022 he had no further treatment or investigations of his right calf muscle as it was believed that the deep vein thrombosis has been resolved. He reported today that his right leg though had remained swollen for the entire period, and he was having no treatment for the deep vein thrombosis.
2.    Additional history since the original Medical Assessment Certificate was performed.
He stated that following the medical assessment carried out in May 2023 he became more concerned about the discomfort and swelling in the right calf muscle. He returned to see Dr McAffee, his General Practitioner. Dr McAffee referred him to Dr Morrisroe, a Consultant Vascular Surgeon. He was seen by Dr Morrisroe on 8 June 2023. In a report dated 21 June 2023 Dr Morrisroe reported that ‘Mr Stacey has right lower limb pitting oedema. A Venous Duplex examination demonstrated some popliteal vein chronic thrombus, which was compressible. This was in keeping with his known history of deep vein thrombosis. The chronic thrombus and associated mild popliteal venous incompetence can contribute to the right lower limb oedema.’
Dr Morrisroe then recommended that he obtain a Grade 2 compression stocking, which he would have to wear ongoing. He has since had a second consultation with Dr Morrisroe where it was decided that the compression stocking was doing an excellent job. He has a further consultation booked for next year.
Current Symptoms:
He reported that the swelling in his right legs tends to increase with physical activity including prolonged walking and going up and down stairs. He stated though that the swelling has been well controlled by his current grade 2 compression stocking. This involves his foot and goes up to the top of his calf.
On questioning he did not report any claudication in the right leg following activity including walking or going up and down stairs. The problem is mostly significant oedema. He reported that his walking was currently restricted to approximately 500 metres, but this is due to his knee pain not to the swelling in the calf region. When walking he is using a forearm crutch on his right side but tends to only use the crutch when he goes out and not when he is at home.
Current treatment:
He sees Dr McAffee as required and is due to see Dr Morrisroe in early 2024. He continues to wear a grade 2 stocking over his right leg from the foot up to the knee. He wears the stocking all the time. He has been told that he will probably need to continue wearing them long term.
He is currently on medication for anxiety and a tablet for macular degeneration. He is not taking any anticoagulants.
3.    Findings on clinical examination
Mr Stacey was 176cms tall and weighed 84.8kgs. He was noted to use a forearm crutch in his right hand when moving around the consultation area. He stated that this was due to his knee pain and not to the swelling in the calf muscle.
The circumference of the right and left legs 10cms above the thigh, mid-calf and over the ankle was carried out. In the right thigh the circumference was 46cms and equal to the left thigh. In the mid-calf on the right the circumference was 33cms but on the left it was 35cms. In the ankle the circumference was 23cms compared to 24cms on the left. This is consistent with muscle wasting in the right lower leg with full control of the oedema with the compression stocking.
This was after he had removed the grade 2 compression stocking. It appears that the stocking was working very well. There was no evidence of pitting oedema in the right leg or in the left leg.
Vascular examination revealed normal popliteal, dorsalis pedis and posterior tibial artery pulses in both legs. No varicose veins were noted in either leg and there was no evidence of varicose eczema.
4.    Results of any additional investigations since the original Medical Assessment Certificate
A right lower extremity Venous Duplex examination was carried out on 16 June 2023. This was reported as showing that ‘the superficial veins were competent. With respect to the deep veins the deep veins compressed with probe pressure with the exception of the distal FV. At 13cms for a length of 5cms there is echogenic/chronic thrombus within the FV. The calf veins and the popliteal vein compressed with probe pressure.
The GSV is continuous from the SFJ to the distal calf and has a segment of incompetence in the medial distal thigh’.
The Venous Duplex ultrasound reveals an area of non-occlusive chronic thrombosis in the veins of the right calf muscle.
Conclusion/Discussion:
Mr Stacey has a chronic venous thrombosis in the popliteal veins leading down into the back of the calf. This is incomplete. It is associated with ongoing swelling or oedema of the right calf muscle. With treatment of a grade 2 compression stocking the oedema has now been totally controlled. He does have a permanent impairment associated with his peripheral vascular disease in the right calf. This would normally be assessed as part of the lower extremity impairment using Table 17-38 of the Lower Extremity Chapter. I note though that Dr Hopcroft, Orthopaedic Surgeon in his Independent Medical Examination report for the Applicant assessed the deep vein thrombosis under Table 4.4 in the Cardiovascular System Chapter. Unfortunately, Table 4-4 is for the upper extremity, and he should have used Table 4-5.
I note that Table 4-5 in the Cardiovascular Chapter and Table 17-38 in the Lower Extremity Chapter are almost identical with only several minor differences. I also note that the Medical Assessor was asked to assess the deep vein thrombosis under the Cardiovascular System in his referral and from the body parts mentioned in the ARD.
On my examination findings today, I note that under Table 4-5 Mr Stacey would fall under Class 2. Whilst he has no claudication involving his right lower extremity, he does have persistent oedema of moderate degree, which is controlled by elastic supports. Considering my findings today I believe he was at the lower end of the Class and would give 10% lower extremity impairment. (I note whether you use Table 4-5 or Table 17-38 that he would remain at the same impairment rating. This would then be converted to 2.5% WPI which would be rounded to 3% WPI.”

The Panel adopts Medical Assessor Burns’ report.
It can be seen that the referral correctly identified the appropriate injury. Mr Stacey’s impairment falls to be assessed by Table 4.5 of Chapter 4 of AMA5. Chapter 4 is entitled “The Cardiovascular System: Systemic and Pulmonary Arteries”.[14] Table 4.5 is entitled “Criteria for Rating Permanent Impairment of the Lower Extremity Due to Peripheral Vascular Disease”.[15] We agree that another referral could have been made pursuant to Table 17-38 of Chapter 17 of AMA5. Chapter 17 is entitled “The Lower Extremities”[16] and Table 17-38 is entitled “Lower Extremity Impairment Due to Peripheral Vascular Disease:[17] In this case, Table 4.5 may be more appropriate, as Class 1 criteria stipulates, inter alia, “neither intermittent claudication nor pain at rest” whereas Table 17-38 requires “Neither claudication nor pain at rest”. The distinction is of small moment.
[14] AMA5 page 65.
[15] AMA5 page 76.
[16] AMA5 page 523.
[17] AMA5 page 554.
For these reasons, the Appeal Panel has determined that the MAC issued on
18 October 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W223/23
Applicant:	Scott Hamilton Stacey
Respondent:	Secretary, Department of Education

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Christopher Grainge and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system

Date of Injury

Chapter,

page and paragraph number in WorkCover Guides

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

cardiovascular system

19.09.18

Chapter 15

Chapter 4 Table 4.5

Total % WPI (the Combined Table values of all sub-totals)

[2024] NSWPICMP 198

4 April 2024